Basic Structure – III: “We the People”, Higher Lawmaking and the Idea of Dualist Democracy

In his written submissions in Kesavananda, Mr. Palkhivala argued that the “ultimate legal sovereignty of the people” could not be vested in the Parliament. This draws support from the preambular phrase – “We the People… do hereby enact, adopt and give to ourselves this Constitution” – suggesting that the Indian Constitution is meant to embody a form of social contract between the people of India. The contractarian theory is premised upon the idea that institutions of a political democracy (including the rule of the majority) are the result of a consensus between free and equal individuals who have joined together to form the State. The basis of democracy, therefore, is the equal freedom of sovereign democratic citizens. The concept of “freedom” contains within it not only equal political participation, but also – as Rawls argues – basic rights and liberties such as the freedom of thought and conscience, the rule of law, etc (see Rawls, A Theory of Justice, p. 440). Giving up these rights would be tantamount to depriving oneself of both freedom and sovereignty, and would take away the basic premise of contractarian democracy (a point made by both Locke and Montesquieu). Therefore, in a Constitution that is founded upon a social contract (as the Indian Constitution purports to be), the people are entitled to reserve certain basic rights to themselves, which the government cannot take away or abridge.

But how, it may be objected, do we know what equal citizenship entails? And why, after all, ought we leave the responsibility of determining features of equal citizenship to unelected judges often drawn from a narrow pool of society? To that, the answer is that the requirements of equal citizenship – that is, the elements of the basic structure, are drawn from the Constitution itself, because “We the People” wrote them in. In other words, the theory of legislative sovereignty cannot exist in India. This is because a written Constitution, possessing the “validity of a statute emanating from the sovereign people”, and which defines the fundamental political arrangements of the State, is clearly superior to the “ordinary legislative organ.” (see the arguments of E.S. Corwin) Furthermore, not only has the Constitution defined the nation’s fundamental political arrangements, it has also brought into existence the three wings of State, and has allocated the distribution of powers between them. Therefore, the power of the legislature is clearly subordinate to that of the Constitution, and co-ordinate to the other branches of government. In this context, it may be argued, the legislature, which derives its power and its very existence from the Constitution, cannot use that power to destroy it. Secondly, none of the three State organs can use its power to destroy or abrogate the powers and functions of any of the other organs, as the Constitution clearly postulates, at the very least, the existence of the three organs with clearly defined and separate types of powers (or, in Seervai’s terms, this is what distinguishes the framing power, which is not subject to the separation of powers, from the amending power, which is; see Seervai, Vol. III, p. 3119). For example, the legislature clearly cannot pass a Constitutional amendment abolishing the judiciary. However, both these possibilities would be realized in the case of unlimited amending power. Therefore, such a construction of the Parliament’s amending power must be rejected. Thus – the argument goes – the allegation that the basic structure doctrine replaces parliamentary sovereignty with judicial supremacy simply holds no force. It is the Constitution which is sovereign and supreme, not any of the three wings of State. Undoubtedly, what the doctrine has done is to give the judiciary the last word on interpreting the Constitution. But that is all.

But now, consider a further difficulty. If the authority of the Constitution is ultimately derived from “We the People”, then surely “We the People” are allowed to change Our minds – including Our determination of what constitutes equal citizenship. Not only that, the Constitution itself provides the mechanism by which We the People can change Our minds – the supermajoritarian amendment procedure! Thus, the objection continues, if the Constitution is indeed the creation of We the People, what on earth justifies the judges in denying to the People the right to change Their minds, through the very procedure They wrote into the Constitution to do just that, even if it is to make mutable the principles They once considered immutable?

This is a difficult question, and clearly, if it cannot be answered, then the basic structure doctrine fundamentally lacks legitimacy. To answer it, we need to introduce, at this point, a new concept: that of dualist democracy, originated by Bruce Ackerman in his book, We the People.

It would be impossible to do justice to the richness and complexity of the Ackermanian theory in this short space: nonetheless – briefly – Ackerman argues that lawmaking occurs at different levels of public engagement and participation, with degrees of legitimacy accorded to each level depending upon the nature of participation. The reason, for Ackerman, why we have a representative democracy (as opposed to Athenian-style direct democracy) lies in the fact that we are both private citizens and private citizens; that is, we not only engage with the political process as citizens, through instances such as the vote, but an integral part of our lives is the private, non-political aspect. It is this private aspect that makes our lives wholesome, rich and worthwhile – indeed, there would be something distinctly incomplete about a life spent perennially engaged in politics. This, then, is what justifies representative democracy, which is nothing more than We the People delegating day-to-day political decision-making to their chosen representatives, leaving themselves free to pursue their private aims and goals, and construct their private lives.

Yet there are times when this changes. Times of great political upheaval, excitement and change, when there is great public mobilization over core issues, extensive public deliberation and debate, where what is at stake is the set of fundamental principles that structure the polity itself. In the context of American history, Ackerman identifies three such “moments”: the framing of the Constitution, the post-Civil War Reconstruction, when slavery was abolished, and the New Deal, when laissez faire capitalism was repudiated in favour of the regulatory state. For Ackerman, these periods are defined by a transformation of some of the most basic ideas that governed society, as well as the broad and deep public participation that shaped the transformation. This, then, is a higher level of lawmaking (hence, dualist democracy – dualist in that there is a difference between “ordinary lawmaking”, as undertaken by majoritarian legislatures in normal times, and “higher lawmaking”, that happens in rare moments of extensive public mobilization to debate issues of fundamental importance); and crucially, for Ackerman, the point of constitutional law (and, by extension, judicial review) is to ensure that the principles established during periods of higher lawmaking are protected from change by the majoritarian legislative process precisely because the circumstances of their framing lend them greater popular and democratic legitimacy than ordinary lawmaking.

We are now in a position to apply this argument to India. We have, of course, a parliamentary legislative procedure for ordinary times. We have a supermajoritarian amendment procedure – but, as the 98 amendments over the last 64 years demonstrate, while this is admittedly a higher form of lawmaking – it isn’t so by much (compare the 29 amendments to the American Constitution in 225-odd years). The Article 368 procedure itself is only slightly more onerous than regular lawmaking, in that it requires a two-thirds majority in each house, and some state consent in some cases.

But now consider, in comparison, the circumstances of the framing of the Constitution. Recall that it was the culmination of an independence movement that enjoyed an extraordinary broad amount of support and participation from all sections of society; the Constituent Assembly itself consisted of popular leaders of that independence movement, many of whom had served as elected representatives under the 1935 Government of India Act regime; and moreover, what was at stake was not just the transfer of power from a colonial government, but the very character of a newborn nation (see, e.g., the Constituent Assembly Debates). In short, the Ackermanian conditions for lawmaking at the highest level are here fulfilled (spoilt, in part, by the absence of a ratification process, no doubt, but for the purposes of argument, we can let that be for the moment).

And if that is the case, then we can easily understand why the most basic principles that were agreed upon – that India would be a republican democracy, governed by a written constitution, and founded upon the pillars of equality, fundamental freedoms to speak, associate and move, and secularism – these principles that now form part of the basic structure, can legitimately be preserved against both the ordinary legislative process, and the supermajoritarian amendment process that is only slightly less commonplace. What would be sufficient to change this? Another upheaval of a comparable degree to the freedom movement, one that has its animating goal changes as far-reaching, and draws upon extensive and deep public engagement. 

In this context, Indira Gandhi’s Emergency can be considered to be a failed constitutional moment (in Ackermanian terms). Not only did Mrs Gandhi proclaim a grave national emergency and an existential threat to the nation, but also, the changes she sought to bring about –  that is, complete subordination of basic rights to the whim of the parliament, the constitutionalization of bills of attainder, drastic reductions in the power of the judiciary and the strengthening of executive prerogative – much of this through the 42nd Amendment –  were an attempt at a fundamental transformation of the framers’ proposed system of governance (see Henry Hart’s take). Yet, the most far-reaching aspects of the proposed changes were struck down by the Court (first in Indira Nehru Gandhi Raj Narain, and then in Minerva Mills Union of India) on basic structure grounds; and We the People validated the Court’s stance by voting out Mrs Gandhi – both herself and her party – at the first general election after the revocation of the Emergency, one that was widely regarded as a referendum on the same; and the succeeding Janata Party undid the rest through the 44th Amendment. Had Mrs Gandhi, however, been returned victorious in the 1977 general election, surely that would have been seen as a vindication of her agenda – and a possible case for a transformative constitutional moment on par with the framing itself. And admittedly, we would now probably have had a very different Constitution, with no basic structure doctrine at all.

To sum up, then: the moment of the framing represents, in Ackermanian terms, an instance of “higher lawmaking”, one that possesses great political and democratic legitimacy because of the depth of public engagement and the transformative nature of the issues involved. It is therefore justified, then, for Courts to preserve the fundamental essentials of the framing from lower-level lawmaking procedures such as ordinary legislation and amendment, until We the People engage in higher lawmaking again. Indira Gandhi’s Emergency represents a failed constitutional moment, where We the People rejected her transformative proposals; we await the next attempt at doing so.

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Filed under Basic structure, Constitutional interpretation, Dualist Democracy and Higher Lawmaking, The Basic Structure and Democracy

One response to “Basic Structure – III: “We the People”, Higher Lawmaking and the Idea of Dualist Democracy

  1. Pingback: Basic Structure – VIII: Conclusion (of sorts) | Indian Constitutional Law and Philosophy

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